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Why NSW's anti-corruption watchdog is more effective than Victoria's

Eric Dyrenfurth

In the dystopian gloom of London’s Ministry of Truth, sardonically portrayed in George Orwell’s novel Nineteen Eighty-Four, Winston Smith labours mightily at erasing the print media past, to suit an ever-shifting present dictated by ‘‘The Party’’. This ideology-free collective elite, having absorbed all competing political groupings, rules only to entrench power for itself under a mind-numbing slogan ‘‘Ignorance is Strength’’.

Fast forward to Victoria 2014. For most of its time in office in the 2000s, Labor fiercely resisted an anti-corruption commission, while the Coalition from the safe haven of opposition fervently supported it. In government, however, the Coalition duly gave birth to a puny toothless tiger, unable under its legislative shackles to confront any possible corruption by ministers and senior public servants.

Why has such an all-party, common-interest approach to anti-corruption machinery evolved in Victoria, with dramatic change unlikely even if Labor were to return to power later this year? For an answer, turn north to NSW and its Independent Commission Against Corruption (ICAC). There you find sweeping investigative and fact-finding powers, ‘‘name and shame’’ public interest hearings focusing the sun’s rays into the darker recesses of public/private relations, all presided over by courageous commissioners with high-community standing. ICAC is untrammelled by Victoria’s weak-kneed ‘‘exceptional circumstances’’ constraint on public hearings, while nevertheless acknowledging their potential reputational damage.

Created by the Nick Greiner Liberal government in the aftermath of corruption allegations surrounding Labor premier Neville Wran, ICAC then triggered the downfalls of Liberal premiers Greiner and very recently Barry O’Farrell, following a gift of an expensive bottle of wine by a Liberal Party supporter. It is now busy investigating former Labor and Liberal ministers in public hearings into Australian Water Holdings. Political donation deals potentially affecting government decisions have embroiled politicians from both sides of politics. They must truly hanker for the Orwellian satirical solution: ‘‘The Party’’, with a pillar of strength concreted in public ignorance and media manipulation.

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A couple of weeks ago, Victoria’s Independent Broad-based Anti-Corruption Commission (IBAC) proudly released a report on its first full year of operations, making much of its prevention and education tasks.

Sadly, however, it listed just 10 completed investigations out of 24 commenced, with only four of those 10 covering public officials (as against police), with one public official charged, and no investigations directed at state government ministers or public officials. Hardly a strong case for ‘‘runs on the board’’ justifying IBAC’s over-blown hype and resources, with a couple of small local government minnows reeled in, and no adverse comments on named individuals.

It’s still early days, with IBAC blaming parliament for these feeble efforts. But has chicken-hearted legislation failed to attract the best staff and created an overly cautious internal culture? Last September, IBAC reported at a public conference that most complaints were dismissed as trivial, vexatious, previously investigated or simply lacking evidence: easily enough said, and in its 2013-14 annual report, the public should expect IBAC to divulge hard data on this pattern of dismissals, as well as on protected disclosure (‘‘whistleblower’’) referrals to the Ombudsman.

Let’s not be too churlish. IBAC now proposes to the government changes resulting from ‘‘ongoing practical experience’’. Indeed, while IBAC happily admits to bypassing certain legislative restrictions, such initiatives depend on its own creative reading of the statutes. The fault line here is that if it took on public official heavy-hitters with deep pockets, rather than small fry, it might find itself bogged down in Supreme Court challenges.

First, despite lack of clear legislative authority, IBAC currently conducts preliminary investigations without being able to exercise coercive powers and by presumably plumbing its intelligence networks. All this occurs in secret, is publicly unaccountable and raises civil liberties concerns. Much better, as with ICAC, to obtain lawful authority for such investigations, with proper safeguards.

Second, and critically, IBAC has slyly slithered around and not vaulted the greatly criticised high-investigation bar requiring corrupt conduct facts to be proved under the criminal standard of ‘‘beyond reasonable doubt’’, so constituting an indictable offence. Cleverly, IBAC, when deciding to investigate, just focuses on whether it is ‘‘reasonably satisfied’’ of serious corrupt conduct.

Even with this relaxed approach, it still says there are many matters it can’t investigate, but coyly avoids an outright admission that undefined, uncertain ‘‘serious’’ corrupt conduct creates the tiger’s muzzle, leaving that to reader imagination. If the government wants the tiger to brightly bare its teeth, that ‘‘serious’’ legislative muzzle must be discarded, leaving possible corrupt conduct investigations to IBAC’s discretion, as with ICAC.

Recently, controversy has raged over Premier Denis Napthine’s racing and electorate connections with a wealthy Warrnambool businessman, whose company received government largesse, being also apparently involved in Liberal Party fund-raising around Warrnambool’s May racing carnival. The Labor Opposition – taking political advantage – referred to IBAC this alleged conflict of interest. IBAC soon replied that it would not pursue this matter.

But a broader question arises: could IBAC investigate any such matter? It asserts it could investigate complaints of serious corrupt conduct against MPs; conduct preliminary investigations; and then investigate where reasonably satisfied of serious corrupt conduct. As canvassed, legal obstacles to any such high-level investigation are likely to be insurmountable, which anyway would not occur in public.

It might be whistling in the wind, but, whichever party forms office after the November state election, should commission a public inquiry on overhauling manifestly flawed IBAC legislation, including loosening restrictions on public hearings. Victoria might then, like NSW, have an integrity body able to vigorously and transparently expose public-sector corruption. Knowledge, not ignorance, would become the people’s strength.

Eric Dyrenfurth is an administrative and constitutional lawyer, and a former research director with the Victorian Parliament’s estimates committee.

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